Commonwealth v. Harvey
Commonwealth v. Harvey
Opinion of the Court
OPINION
Following a two-day bench trial, Appellant Derrick Harvey was found guilty of, inter alia, first-degree murder for the killing of Shawn Wilkins. On March 19, 1999, following a bench penalty phase hearing, the trial court concluded that the three aggravating factors it found outweighed the two mitigating factors it also found and, consequently, sentenced Appellant to death.
Although Appellant does not challenge the sufficiency of the evidence to support his first-degree murder conviction, this Court is required in all cases in which a death sentence has been imposed to independently review the record to determine whether the Commonwealth has established all of the elements necessary to sustain that conviction. Commonwealth v. Ockenhouse, 562 Pa. 481, 756 A.2d 1130, 1134 (2000). In reviewing the sufficiency of the evidence, “we must determine whether the evidence admitted at trial, and all reasonable inferences drawn from that evidence, when viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to enable the fact finder to conclude that the Commonwealth established all of the elements of the offense beyond a reasonable doubt.” Id. at 1135. In order to establish the elements of first-degree murder, “the Commonwealth [is required to] prove that the defendant acted with a specific intent to kill, that a human being was unlawfully killed, that the person accused did the killing, and that the killing was done with deliberation.” Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 196 (1997). The element of specific intent to kill may be proven by circumstantial evidence and may be inferred from the use of a deadly weapon on a vital part of the victim’s body. Ockenhouse, 756 A.2d at 1135. The use of deadly force against a person is not justified unless the actor believes that such force is immediately necessary to protect himself against death or serious bodily injury. 18 Pa.C.S. § 505(b)(2).
At trial, the parties stipulated that when the police arrived at the scene at approximately 4:30 p.m. on January 10, 1998, they discovered Shawn dead in the bedroom, surrounded by four fired .40-caliber cartridge cases and two fired .22-caliber cartridge cases. An autopsy of Shawn’s body showed that Shawn had been shot six times, including three times in the head. The report concluded that, based on the lack of gunpowder stippling around Shawn’s wounds, all six shots had been fired from a distance greater than three feet. A firearms expert’s report showed that Shawn’s wounds were caused by a .22-caliber gun and a .40-caliber gun, which was the same .40-caliber gun that had caused Charity’s wounds. Although the police found a plastic bag containing nine packets of cocaine near the bed, they did not find any guns or money in or around the house.
This evidence, when viewed in the light most favorable to the Commonwealth as the verdict winner, with all reasonable inferences derived therefrom, is clearly sufficient to sustain Appellant’s first-degree murder conviction for the killing of Shawn Wilkins. As stated above, ‘"Charity testified that she witnessed Shawn and Appellant walk upstairs, that there was no one else in the house besides her, Shawn, Appellant, and the two young children, and that she heard gunshots. She
The evidence was also sufficient to support the trial court’s finding that Appellant did not act in self-defense, as Appellant alleged. In his own statement to the police, Appellant admitted that he shot Shawn while Shawn was unarmed. Moreover, even if Shawn in fact threatened Appellant with deadly force before Appellant shot him, as Appellant argued, the autopsy report revealed that Shawn had been shot a total of six times, which was simply more force than would have been necessary for Appellant to use in order to protect himself. See Commonwealth v. Washington, 547 Pa. 563, 692 A.2d 1024, 1029 (1997) (based on number and severity of victim’s wounds, defendant used more force than reasonably necessary to protect self from serious bodily injury and shooting was therefore not in self-defense). These circumstances clearly disprove Appellant’s claim that his use of deadly force was justified, and thus, we agree with the trial court that there was sufficient evidence presented at trial to disprove Appellant’s self-defense claim beyond a reasonable doubt.
Appellant’s first three claims of error involve the alleged ineffectiveness of his trial counsel during the guilt phase of trial. This Court has long held that counsel is presumed to have rendered effective assistance and that a defendant has the burden of proving otherwise. Commonwealth v. Balodis, 560 Pa. 567, 747 A.2d 341, 343 (2000). In order to obtain relief based on counsel’s ineffective assistance, the defendant must demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel’s course of conduct was
In his first claim, Appellant argues that his trial counsel was ineffective in preparing for the guilt phase of his trial. Specifically, Appellant asserts that counsel was ineffective for failing to: (1) adequately consult with him prior to trial; (2) conduct an independent pretrial investigation beyond the evidence turned over by the Commonwealth during discovery; and (3) introduce any evidence at trial. Based on the record before us, Appellant’s first claim fails.
In the first instance, it is well settled that the amount of time an attorney spends consulting with his client before trial is not, by itself, a legitimate basis for inferring the total extent of counsel’s pretrial preparation, much less the adequacy of counsel’s preparation. Commonwealth v. Bundy, 491 Pa. 607, 421 A.2d 1050, 1051 (1980). Here, beyond alleging that counsel only spent one hour consulting with him before trial, Appellant fails to allege any issues that his counsel should have raised or any beneficial information that his counsel would have discovered had further pretrial consultations been held. See Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 896 (1999) (to establish ineffectiveness on basis of alleged inadequate pretrial consultation, defendant must establish that counsel inexcusably failed to raise issues that, had they been raised, would have entitled him to relief). Thus, Appellant’s claim that his trial counsel was ineffective for failing to adequately consult with him before trial fails.
In the final part of his first issue, Appellant argues that his trial counsel was ineffective for failing to introduce any evidence at trial. We disagree. Faced with Appellant’s admission of killing Shawn, as well as Charity’s testimony that Appellant killed Shawn and then tried to execute her, counsel
In his second claim, Appellant maintains that his trial counsel was ineffective for failing to move to suppress his inculpatory statement in which he admitted to shooting Shawn and Charity Wilkins. This claim fails.
The trial court must assess the voluntariness of a confession based on the totality of the circumstances, looking at the following factors: (1) the duration and means of interrogation; (2) the defendant’s physical and psychological state; (3) the conditions attendant to the detention; (4) the attitude of the interrogator; and (5) “any and all other factors that could drain a person’s ability to withstand suggestion and coercion.” Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 882 (1998). When looking at the confession of a juvenile, the court must also consider the juvenile’s age, experience, and sophistication, and whether an interested adult was present during the interrogation. Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283, 1288 (1984).
In his final claim of error in the guilt phase of his trial, Appellant asserts that his trial counsel was ineffective for failing to ask for a competency hearing to inquire into the competency of the Commonwealth’s thirteen-year-old witness, Charity Wilkins. This claim also fails.
In general, a witness’s competency to testify at trial is presumed and the burden falls on the objecting party to demonstrate the witness’s incompetence. See Rosche v. McCoy, 397 Pa. 615,156 A.2d 307, 310 (1959). However, when a child under the age of fourteen is called to testify, the competency of the minor must be independently established. Id. In order to be found competent, the minor must possess: (1) the capacity to communicate, including both an ability to understand questions and to frame and express intelligent answers; (2) the mental capacity to observe the occurrence itself and the capacity to remember the matter about which
In the instant case, the record clearly indicates that Charity was able to understand the questions asked of her by counsel and was able to frame and express intelligent answers to those questions regarding the details of the shooting. However, as the trial court acknowledged, given that Charity was only thirteen years old at the time of trial, the court did err in failing to conduct a separate colloquy in order to determine Charity’s understanding of the oath that she took to tell the truth. See id. Nevertheless, we agree with the trial court that because it had the opportunity to observe Charity’s demeanor and was the sole determiner of her truthfulness, the fact that the trial court did not engage in a distinct colloquy regarding the truthfulness aspects of her competency did not prejudice Appellant. Accordingly, this claim, like Appellant’s other claims of error in the guilt phase of his trial, fails, and we therefore affirm Appellant’s conviction for first-degree murder.
Turning to Appellant’s claims of error in his penalty phase, Appellant first argues that the Commonwealth did not present sufficient evidence to establish all of the elements of the aggravating circumstance defined by 42 Pa.C.S. § 9711(d)(14) (the “(d)(14) aggravator”). We agree.
The (d)(14) aggravator applies only if:
At the time of the killing, the victim was or had been involved, associated or in competition -with the defendant in the sale, manufacture, distribution or delivery of any controlled substance or counterfeit controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act or similar law of any other state, the District of Columbia or the United States, and the defendant committed the killing or was an accomplice to the killing as defined in 18 Pa.C.S. § 306(c), and the killing resulted from or was related to that association, involvement or competition to promote the defendant’s activities in selling, manufacturing,*550 distributing or delivering controlled substances or counterfeit controlled substances.
42 Pa.C.S. § 97ll(d)(14) (emphases added). During the penalty phase of a first-degree' murder trial, the Commonwealth bears the burden of proving all aggravating circumstances beyond a reasonable doubt. 42 Pa.C.S. § 9711(c)(1)(iii).
The trial court below based its finding that the Commonwealth had proven the (d)(14) aggravator on “[Appellant’s] own statement [during interrogation] that he was picked up by the decedent [and] went to his room to get paid for the drugs, or buy drugs, or exchange money for the drugs.” N.T., 3/19/99, at 133. The trial court’s basis for finding the (d)(14) aggravator only addressed the first element of the aggravator, ie., that at the time of the killing the victim was involved with the defendant in the sale of a controlled substance. The trial court, however, seemingly ignored an essential element of the (d)(14) aggravator, ie., that the killing, which resulted from that involvement, was to promote the defendant’s activities in selling controlled substances.
Our review of the record reveals that the Commonwealth failed to present any evidence whatsoever that Appellant killed Shawn to promote his activities in selling drugs. While the record does support a conclusion that Appellant and Shawn were involved in a drug sale at the time of the killing, the plain language of the (d)(14) aggravator also requires a showing that Appellant killed Shawn to “promote [his] activities in selling, manufacturing, distributing or delivering controlled substances.” 42 Pa.C.S. § 9711(d)(14) (emphasis added). Accordingly, in order to satisfy its burden of proving that the (d)(14) aggravator applied beyond a reasonable doubt, the Commonwealth was required to make a showing that Appellant killed Shawn for a specific purpose, ie., to contribute to the growth or prosperity of his own drug activities, which the Commonwéalth completely failed to do here. Given this void in the record, we conclude that the trial court erred in finding the (d)(14) aggravator.
. The trial court found the following aggravating circumstances: (1) the killing was committed in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6); (2) the defendant has a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9); and (3) at the time of the killing the victim was involved, associated, or in competition with the defendant in the sale, manufacture, distribution, or delivery of any controlled substance, the defendant killed the victim, and the killing promoted the defendant's activities in selling, manufacturing, distributing, or delivering controlled substances, 42 Pa.C.S. § 9711(d)(14). The trial court also found that Appellant’s age, 42 Pa.C.S. § 9711(e)(4), and his family history of abuse, 42 Pa.C.S. § 9711(e)(8), were mitigating circumstances.
. Appellant chose to forego filing post-sentence motions with the trial court and instead appealed his death sentence directly to this Court.
. Given that the trial record was transmitted to this Court without a written opinion, we previously remanded the matter to the trial court for the preparation and the filing of an opinion. The trial court has now filed its opinion.
. Although Appellant claims that he left the $125 in Shawn’s pocket, the police failed to find any money there when they investigated the crime scene.
. Instead, Appellant relies on Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (Pa. 1976), for the proposition that "the prosecution's file is not a substitute for an independent investigation by defense counsel.” Id. at 374. Mabie, however, is completely distinguishable from the instant case in several respects. The defendant in Mabie was sentenced upon a guilty plea to second-degree murder, and on appeal, this Court held that the defendant was denied effective representation where counsel, relying entirely on the District Attorney's file, failed to make any attempt to confirm the defendant’s contention that he had been hospitalized immediately after the killing for injuries received in the fight and where counsel discounted the defense of self-defense without questioning eyewitnesses other than the defendant and his brother. Most notably, in holding that the prosecution’s file was not a substitute for an independent investigation by defense counsel, this Court reasoned that “(s)ince discussions with witnesses and a review of Mabie’s hospital records may have established a defense and the pursuit of such a possible defense was curtailed only upon the basis of information in the Commonwealth’s file, counsel’s decision not to investigate either or both avenues cannot be said to have [had] a reasonable basis designed to effectuate his client’s interest.” Id. Inslantly, Appellant does not claim, nor do the facts suggest, the existence of a possible defense that counsel failed to explore. In fact, unlike the defendant’s counsel in Mabie, Appellant’s counsel specifically pursued a self-defense claim here. Moreover, there was no witness to the shooting who was alive to testily in support of this self-defense claim. Thus, Appellant's reliance on Mabie is misplaced.
. Moreover, under the facts of this case, we find that Appellant's counsel had ample reason to believe that independent interviews with Charity, Charles Wilkins, Jr., and Joseph Seagraves were unnecessary
. Appellant also claims that the trial court committed legal error by not sufficiently inquiring into Appellant’s oral complaints about counsel's performance. On the first day of trial, however, the court engaged in an extensive colloquy with trial counsel and Appellant concerning counsel's readiness for trial. After having counsel's preparation efforts explained to him, Appellant stated that he was satisfied with counsel's performance. See N.T., 10/26/98, at 29. Thus, Appellant’s claim is meritless.
. While we need not address Appellant’s remaining claims regarding his penalty phase, we note our agreement with Appellant that the
Concurring Opinion
CONCURRING OPINION
I join the affirmation of appellant’s conviction. I agree that 42 Pa.C.S. § 9711(d)(14), as framed by the legislature, requires the killing be "with the purpose of promoting the defendant’s drug activity, and the record on this element is insufficient. The Commonwealth’s brief does not argue otherwise, and remand is appropriate. However, I find sufficient evidence to allow a conclusion of robbery, despite the suggestion of my colleagues to the contrary, and thus offer this concurrence.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellee, v. Derrick HARVEY, Appellant
- Cited By
- 44 cases
- Status
- Published